Environmentalists sued the federal government to stop activities they disliked, but a shocking ruling Tuesday by a federal appeals court weakens a regulatory system that has long served them well. There may be consequences.
The U.S. Court of Appeals for the DC Circuit issued the following decision: Marine Audubon Society vs. Federal Aviation Administration (FAA) stated that the White House Council on Environmental Quality (CEQ) does not have legal authority to issue National Environmental Policy Act (NEPA) regulations. Environmentalists have long used NEPA as a legal weapon against undesirable infrastructure projects, especially oil and gas-related development, but long delays have pushed back schedules even if the challenge itself has failed. This also resulted in increased costs for builders. According to According to analysis conducted by Breakthrough Research Institute.
Signed by former President Richard Nixon nepa It was enacted into law in 1970 and has served as the cornerstone of the environmental regulatory system ever since. The ruling essentially told CEQ that “the rulemaking authority [the] The agency I have relied on for nearly 50 years no longer exists.” According to But the three-judge panel that handed down the ruling could still be overturned by the Supreme Court or an appellate court, said Mike Catanzaro, a former deputy policy director at the Bush White House CEQ.
“This case conclusively reveals a fundamental and unfortunate truth about NEPA: In many ways, NEPA is an administratively and illegally created behemoth, largely created by Congress. I never endorsed it,” Catanzaro told the Daily Caller. News Foundation. “Nevertheless, while this decision is welcome, it raises important and potentially problematic procedural issues, and the entire D.C. Circuit has decided that the three judges on the merits This could lead to reconsidering and even overturning the correct conclusions of the government panel.” (Related: 'Devastating': Top grid official warns of Biden's sweeping power plant rules)
'This is huge': Supreme Court eviscerates administrative state, Biden's climate policy could be hit hardesthttps://t.co/nDYUrHkIW9
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“Furthermore, because this decision applies only to one circuit court, judges in other similar courts may reach very different substantive legal conclusions,” Catanzaro continued. “Additionally, the Supreme Court is currently considering the first NEPA case in 20 years, a case rooted in the very regulations that the D.C. Circuit chose to invalidate.” It is highly likely that the Supreme Court will make the final decision. ”
In the lawsuit underlying the ruling, environmentalists accused the FAA of failing to adequately consider the environmental impact of allowing flights over national parks in the San Francisco area. Although the court invalidated the FAA's plan, it also invalidated CEQ's NEPA rule, finding it unenforceable. According to to Sidley, a major law firm.
It's not entirely clear what specific impact Tuesday's ruling will have on the permitting process if it survives further review and appeal, but the Supreme Court's decision in June significantly reduced the agency's ability to interpret it. Just a few months after it was handed down, the ruling effectively overturns the existing paradigm. laws for themselves. Particularly given President-elect Donald Trump's promise to cut regulations in his second term, the D.C. Circuit's decision “has implications for how federal agencies implement NEPA and the nature of NEPA reviews in the coming years.” “It has the potential to pave the way for major change.” According to to the Washington, D.C., law firm of Morgan Lewis.
Among other policies, President Trump pledged It would cancel the Biden-Harris administration's de facto electric vehicle mandate and major power plant regulations.
Steve Milloy, a senior fellow at the Energy and Environmental Law Institute, praised the ruling, calling it a major step toward restoring rule-making power to Congress.
“What's not to like? The executive branch can't enact regulations without the approval of Congress. That's Article 101 of the Constitution,” Milloy told DCNF. “NEPA needs to be amended by Congress. We cannot do this because CEQ is not authorized to do so.”
The Competitive Enterprise Institute (CEI), a pro-free market think tank, also praised the D.C. Circuit's decision.
“The court found that nowhere in the National Environmental Policy Act was the authority given to the Council on Environmental Quality to prescribe the content of environmental impact statements, as it has done since 1978.” CEI said attorney David McFadden. statement. “CEI asserted that very position in its amicus brief filed with the United States Supreme Court in Seven County Infrastructure Coalition v. Eagle County, Colorado. I hope that people will increasingly understand that rights are conferred by law and not acquired by statute of limitations.
The White House did not immediately respond to a request for comment.
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